Monssef Cheneau v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONSSEF CHENEAU, No. 15-70636
Petitioner,
Agency No.
v. A077-279-939
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 6, 2020
Portland, Oregon
Filed August 19, 2020
Before: Mark J. Bennett and Eric D. Miller, Circuit Judges,
and Benita Y. Pearson, * District Judge.
Per Curiam Opinion;
Concurrence by Judge Bennett
*
The Honorable Benita Y. Pearson, United States District Judge for
the Northern District of Ohio, sitting by designation.
2 CHENEAU V. BARR
SUMMARY **
Immigration
Denying in part and granting in part Monssef Cheneau’s
petition for review of a decision of the Board of Immigration
Appeals, and remanding, the panel concluded that Cheneau
was not a derivative citizen of the United States, and that his
burglary conviction, under California Penal Code § 459, was
not a crime-of-violence aggravated felony that rendered him
removable.
As an initial matter, the panel considered which version
of the derivative citizenship statute applied: former 8 U.S.C.
§ 1432(a), which was in effect until February 27, 2001, or
the current statute at 8 U.S.C. § 1431(a). Observing that
§ 1432(a) governed if Cheneau became a citizen before
February 27, 2001, the panel concluded that § 1432(a) did
not apply because it was not in effect at the time of a critical
event giving rise to Cheneau’s eligibility.
Under § 1432(a)(5), a child can obtain derivative
citizenship in two ways: first, if at the time his parent is
naturalized, he “is residing in the United States pursuant to a
lawful admission for permanent residence,” or second, if
after his parent is naturalized and while under eighteen, he
“begins to reside permanently in the United States.”
Cheneau did not obtain lawful permanent resident status
until August 2003, at age eighteen, about four years after his
mother was naturalized and when § 1432(a) was no longer
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHENEAU V. BARR 3
in effect. Thus, the panel concluded that the first provision
of § 1432(a)(5) did not apply. Considering the second
provision of § 1432(a)(5), the panel rejected as foreclosed by
Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008),
Cheneau’s argument that he began to “reside permanently in
the United States” in January 2000, when he applied for
adjustment of status to lawful permanent resident. The panel
explained that under Romero-Ruiz “lawful admission for
permanent residence” is required by both provisions of
clause (5). Thus, because the critical event of Cheneau
obtaining lawful permanent resident status happened in
2003, more than two years after § 1432(a) was repealed, the
panel concluded that § 1432(a) was not applicable, and that
§ 1431(a) applied.
Under § 1431(a), a child born outside of the United
States automatically becomes a citizen of the United States
when all of the following conditions have been fulfilled: (1)
At least one parent of the child is a citizen of the United
States, whether by birth or naturalization; (2) The child is
under the age of eighteen years; and (3) The child is residing
in the United States in the legal and physical custody of the
citizen parent pursuant to a lawful admission for permanent
residence. Observing that Cheneau conceded that he never
resided in the United States pursuant to a lawful admission
for permanent residence while he was under the age of
eighteen, the panel concluded that he did not become a
citizen of the United States pursuant to § 1431(a), and that
he was therefore subject to removal proceedings.
The panel agreed with the government that the Supreme
Court’s intervening decision in Sessions v. Dimaya, 138 S.
Ct. 1204 (2018), negated the aggravated felony crime of
violence ground for Cheneau’s removal based on his § 459
burglary conviction. The panel observed that Cheneau’s
4 CHENEAU V. BARR
conviction for receipt of stolen property, under California
Penal Code § 496(a), appeared to be a categorical aggravated
felony under United States v. Flores, 901 F.3d 1150 (9th Cir.
2018), but noted that the Board did not determine this
question and that the government sought a remand on this
issue. Accordingly, the panel remanded for the Board to
consider whether any of Cheneau’s criminal convictions
rendered him removable.
Concurring, Judge Bennett, joined by Judge Miller and
District Judge Pearson, agreed that Romero-Ruiz foreclosed
Cheneau’s derivative citizenship claim, but wrote separately
because he believes that Romero-Ruiz was phrased too
broadly and established a rule that, although understandable
in the circumstances presented in that case, leads to an
incorrect result when applied in this case.
COUNSEL
Kari E. Hong (argued), Boston College Law School,
Newton, Massachusetts, for Petitioner.
Craig A. Newell, Jr. (argued), Trial Attorney; Emily Anne
Radford, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
CHENEAU V. BARR 5
OPINION
PER CURIAM:
Monssef Cheneau petitions for review of the Board of
Immigration Appeals’ (“BIA”) determinations that he does
not qualify for derivative citizenship and that his burglary
conviction renders him removable. We conclude that
Cheneau is not a derivative citizen of the United States. The
Immigration Judge (“IJ”) and the BIA found that Cheneau
was removable because his California burglary conviction
was a crime-of-violence aggravated felony. While this
appeal was pending, the Supreme Court held that the “crime
of violence” statute, as incorporated into the Immigration
and Nationality Act’s (“INA”) definition of aggravated
felony, is unconstitutionally vague. See Sessions v. Dimaya,
138 S. Ct. 1204, 1223 (2018). Therefore, Cheneau’s
burglary conviction can no longer support removal as a
crime-of-violence aggravated felony. We remand to the BIA
to determine whether Cheneau is removable on another
ground, including based on his California conviction for
receipt of stolen property.
I.
Cheneau was born in December 1984 and is a native of
Morocco and a citizen of France. His parents divorced in
1990, and his mother obtained full custody of him. When
Cheneau was thirteen, he lawfully entered the United States
on a non-immigrant student visa. In July 1999, Cheneau’s
mother was naturalized as a United States citizen.
In January 2000, when Cheneau was fifteen, his mother
filed an I-130 Petition for Alien Relative on his behalf, and
Cheneau simultaneously applied for adjustment to lawful
permanent resident status based on his mother’s pending
6 CHENEAU V. BARR
petition. The Immigration and Naturalization Service
(“INS”) scheduled Cheneau for an adjustment of status
interview but mistakenly mailed the notice of the interview
to Cheneau’s old address. Cheneau and his mother never
received the notice. As a result, Cheneau failed to appear for
the interview, and the INS denied his application for
adjustment of status because he did not appear.
In January 2003, Cheneau’s mother filed a pro se motion
to reopen, writing: “We never received a notice for his
interview. We moved from the previous address . . . . We
sent our notice for address change[] and we sent a lot of
inquiry forms for this file. Unfortunately we never received
an answer. We just [found] out about the problem.” The
INS granted the request for reopening and adjusted
Cheneau’s status to lawful permanent resident in August
2003, when Cheneau was eighteen.
In 2006, Cheneau was convicted of three offenses:
(i) burglary in violation of California Penal Code § 459,
(ii) receipt of stolen property in violation of California Penal
Code § 496(a), and (iii) unlawful taking of a vehicle under
California Vehicle Code § 10851(a). Cheneau was again
convicted of burglary in August 2009. Following his
convictions, the Department of Homeland Security initiated
removal proceedings against Cheneau, alleging that he was
subject to removal on the grounds that he had been convicted
of aggravated felonies and crimes involving moral turpitude.
See 8 U.S.C. § 1227(a)(2)(A).
Before the IJ, Cheneau argued that his removal
proceedings should be terminated because he was a citizen
of the United States, having derived citizenship from his
mother’s naturalization. The IJ rejected Cheneau’s
derivative citizenship claim on the basis that “he did not
attain lawful permanent residence in this country prior to the
CHENEAU V. BARR 7
age of 18.” The IJ also determined that two of Cheneau’s
convictions were for deportable aggravated felonies:
burglary, a crime of violence, and receipt of stolen property,
a theft offense. See 8 U.S.C. § 1101(a)(43)(F), (G). The IJ
expressly made “no findings” as to whether Cheneau had
been convicted of a crime involving moral turpitude.
The BIA affirmed. The BIA first held that under former
8 U.S.C. § 1432(a) (1994), Cheneau had not derived
citizenship from his mother’s naturalization because he did
not become a lawful permanent resident before turning
eighteen. Further, the BIA affirmed the IJ’s determination
that Cheneau was removable on the ground that his burglary
conviction qualified as a crime-of-violence aggravated
felony under 8 U.S.C. § 1101(a)(43)(F). The BIA did not
address the IJ’s other finding regarding Cheneau’s
conviction for receipt of stolen property. Cheneau petitioned
our court for review. We granted the government’s
unopposed motion to remand, so that the BIA could “further
address” whether Cheneau’s burglary conviction was a
crime of violence and determine the “applicable statutory
provision” for Cheneau’s claim of derivative citizenship.
On remand, the BIA again determined that Cheneau’s
burglary conviction was a crime of violence, finding that the
Supreme Court’s decision in Descamps v. United States,
570 U.S. 254 (2013), did not change the analysis. The BIA
also determined that the applicable derivative citizenship
statutory provision was 8 U.S.C. § 1431(a) and not former
8 U.S.C. § 1432(a) 1—which it had applied the first time.
The BIA then concluded that Cheneau was not a derivative
1
Former 8 U.S.C. § 1432(a) was repealed in 2000. We use
“8 U.S.C. § 1432(a)” or “§ 1432(a)” to refer to this former version.
8 CHENEAU V. BARR
citizen under § 1431(a) and was therefore subject to
removal.
II.
We have jurisdiction to determine Cheneau’s claim that
he is a derivative citizen of the United States and therefore
not subject to removal. Minasyan v. Gonzales, 401 F.3d
1069, 1074 (9th Cir. 2005) (citing 8 U.S.C.
§ 1252(b)(5)(A)). We review the legal questions de novo
and “are not required to give Chevron deference to the
agency’s interpretation of the citizenship laws.” 2 Id.
The INA confers automatic “derivative citizenship on
the children of a naturalized citizen, provided certain
statutorily prescribed conditions are met.” Id. at 1075.
Cheneau claims that he derived citizenship from his
mother’s naturalization. This claim is foreclosed by our
decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th
Cir. 2008).
We must first decide which version of the statute
governs. The applicable version is the one that was “in effect
at [the] time the critical events giving rise to eligibility
occurred.” Minasyan, 401 F.3d at 1075. Former § 1432(a)
was in effect until February 27, 2001, when § 1431(a) took
effect. See Hughes v. Ashcroft, 255 F.3d 752, 758–59 (9th
Cir. 2001). Simplified, § 1432(a) governs if Cheneau
became a citizen before February 27, 2001. If Cheneau did
2
We note that there is a circuit split over whether Chevron deference
is appropriate. The Second Circuit, for example, applied Chevron when
reviewing the BIA’s interpretation of § 1432(a), but concluded the BIA’s
interpretation was unreasonable. Nwozuzu v. Holder, 726 F.3d 323, 326–
27, 333 (2d Cir. 2013).
CHENEAU V. BARR 9
not become a citizen before that date, then the successor (and
current) statute, § 1431(a), controls.
Cheneau urges the application of 8 U.S.C. § 1432(a),
which provided in relevant part:
(a) A child born outside of the United States
of alien parents, or of an alien parent and
a citizen parent who has subsequently lost
citizenship of the United States, becomes
a citizen of the United States upon
fulfillment of the following conditions:
...
(5) Such child is residing in the United
States pursuant to a lawful admission
for permanent residence at the time of
the naturalization of the parent . . . , or
thereafter begins to reside
permanently in the United States
while under the age of eighteen years.
We conclude that § 1432(a) does not apply because it
was not in effect at the time of a critical event giving rise to
eligibility. Under clause (5), a child can obtain derivative
citizenship in two ways: first, if at the time his parent is
naturalized, he “is residing in the United States pursuant to a
lawful admission for permanent residence,” or second, if
after his parent is naturalized and while under eighteen, he
“begins to reside permanently in the United States.” Id.
Cheneau did not obtain lawful permanent resident status 3
3
We use interchangeably the terms “lawful admission for
permanent residence” and obtaining status as a “lawful permanent
resident.”
10 CHENEAU V. BARR
until August 2003, at age eighteen, about four years after his
mother was naturalized and when § 1432(a) was no longer
in effect. Thus, the first provision of § 1432(a)(5) does not
help Cheneau.
Cheneau does not dispute this but argues instead that he
became a derivative citizen under the second provision of
§ 1432(a)(5). Cheneau contends that even though he did not
obtain lawful permanent resident status before his mother
was naturalized, he nonetheless began to “reside
permanently in the United States” after she was naturalized,
and “while [he was] under the age of eighteen.” According
to Cheneau, he began to “reside permanently in the United
States” in January 2000, when he applied for adjustment of
status to lawful permanent resident. Under Cheneau’s
interpretation of the second provision, the critical event
occurred before § 1432(a) was repealed. In support,
Cheneau relies on the Second Circuit’s decision in Nwozuzu
v. Holder, 726 F.3d 323 (2d Cir. 2013), which held:
“‘[B]egins to reside permanently’ does not require ‘lawful
permanent resident’ status. It does require, however, ‘some
objective official manifestation of the child’s permanent
residence.’” Id. at 333 (alterations in original) (citation
omitted). In Cheneau’s view, his application for adjustment
to lawful permanent resident status when he was fifteen—in
combination with his actual residence in the United States—
is sufficient as an “objective official manifestation of [his]
permanent residence.” Id. Cheneau thus contends the
undisputed facts demonstrate that he became a citizen when
§ 1432(a) was still in effect.
CHENEAU V. BARR 11
We are foreclosed from following Nwozuzu. 4 In
Romero-Ruiz, we considered a petitioner’s derivative
citizenship claim under § 1432(a)(5). 538 F.3d at 1062.
Like Cheneau, Romero-Ruiz argued that although he had not
been lawfully admitted for permanent residence at the time
of his mother’s naturalization, he qualified for derivative
citizenship under the second provision’s “begins to reside
permanently” requirement. Id. We rejected Romero-Ruiz’s
argument, concluding: “A plain reading of the statute
evidences the requirement that the child be residing pursuant
to lawful admission either at the time of the parent’s
naturalization or at some subsequent time while under the
age of 18. The phrase ‘or thereafter begins to reside
permanently’ alters only the timing of the residence
requirement, not the requirement of legal residence.” Id.
We are bound by Romero-Ruiz, under which “lawful
admission for permanent residence” is required by both
provisions of clause (5). See Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003) (en banc) (instructing that absent
superseding Supreme Court authority, “a three-judge panel
may not overrule a prior decision of the court”); Tippett v.
Coleman (In re Tippett), 542 F.3d 684, 691 (9th Cir. 2008)
(“[W]here a panel confronts an issue germane to the eventual
resolution of the case, . . . that ruling becomes the law of the
circuit, regardless of whether doing so is necessary in some
strict logical sense.” (citation omitted)).
We acknowledge that certain language in Romero-Ruiz
can be read as indicating that the second provision requires
“some lawful status” but not necessarily lawful permanent
4
Indeed, the Second Circuit expressly disagreed with our court
when it held that the second provision does not require “lawful admission
for permanent residence.” Nwozuzu, 726 F.3d at 328 n.5.
12 CHENEAU V. BARR
resident status. But we think this view requires a strained
reading of Romero-Ruiz, especially considering the first
sentence of the opinion: “This petition for review presents
the question of whether an immigrant who did not have
lawful permanent resident status at the time of his mother’s
naturalization is eligible for derivative citizenship. We
conclude that he is not, and deny the petition.” 538 F.3d
at 1060; see also id. at 1062. In addition, Romero-Ruiz’s
surplusage analysis makes sense only if “reside
permanently” requires lawful permanent resident status: “To
interpret the second clause as conferring derivative
citizenship on children who otherwise meet the requirements
as long as they are permanently living in the United States
would render the first clause—requiring legal permanent
residence—superfluous.” Id. The Second, Fifth, and
Eleventh Circuits have all read Romero-Ruiz like we do here,
as requiring “lawful admission for permanent residence”
under both provisions. See Nwozuzu, 726 F.3d at 328 n.5;
Gonzalez v. Holder, 771 F.3d 238, 240–41 (5th Cir. 2014);
United States v. Forey-Quintero, 626 F.3d 1323, 1326–27
(11th Cir. 2010) (agreeing with Romero-Ruiz’s holding).
We are, of course, not bound by other circuits’ views of our
opinions. But the fact that three of them read Romero-Ruiz
as we do indicates that our reading is correct.
Under Romero-Ruiz, the critical event of Cheneau
obtaining lawful permanent resident status happened in
2003, more than two years after § 1432(a) was repealed, and
that section is therefore not applicable.
We apply instead 8 U.S.C. § 1431(a), which states:
A child born outside of the United States
automatically becomes a citizen of the United
States when all of the following conditions
have been fulfilled:
CHENEAU V. BARR 13
(1) At least one parent of the child is a citizen
of the United States, whether by birth or
naturalization.
(2) The child is under the age of eighteen
years.
(3) The child is residing in the United States
in the legal and physical custody of the
citizen parent pursuant to a lawful
admission for permanent residence.
Cheneau concedes that he never resided in the United States
pursuant to a lawful admission for permanent residence
while he was under the age of eighteen. Therefore, Cheneau
did not become a citizen of the United States pursuant to
§ 1431(a).
III.
As Cheneau is not a citizen of the United States, he is
subject to removal proceedings. The BIA found that
Cheneau was removable because his burglary conviction
was a crime-of-violence aggravated felony. The government
concedes on appeal that the Supreme Court’s intervening
decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
“negates this ground for Cheneau’s removal.” We agree.
Although Cheneau’s conviction for receipt of stolen
property appears to be a categorical aggravated felony under
United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), the
BIA did not determine this question and the government
seeks a remand on this issue. We accordingly remand to the
BIA to consider whether any of Cheneau’s criminal
convictions render him removable.
14 CHENEAU V. BARR
Petition DENIED in part and GRANTED in part;
REMANDED.
The parties are to bear their own costs.
BENNETT, Circuit Judge, with whom Judge Miller and
Judge Pearson join, concurring:
Our decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057
(9th Cir. 2008), forecloses Cheneau’s derivative citizenship
claim, so I concur in our per curiam opinion. I write
separately because I believe that Romero-Ruiz was phrased
too broadly and established a rule that, although
understandable in the circumstances presented in that case,
leads to an incorrect result when applied here. 1
Cheneau’s derivative citizenship claim turns on the
interpretation of a now-repealed section of the Immigration
Nationality Act (“INA”)—8 U.S.C. § 1432(a) (1994). 2
Though § 1432(a) was repealed effective February 2001, it
would nonetheless be applicable to Cheneau’s derivative
citizenship claim if it were “in effect at [the] time the critical
events giving rise to eligibility occurred.” Minasyan v.
Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). In my view,
§ 1432(a) applies here, and Cheneau became a United States
1
Romero-Ruiz had no lawful status in the United States, so the court
in that case had no occasion to consider a situation like Cheneau’s. Had
Cheneau’s situation been before the panel in Romero-Ruiz, the holding
might have been different.
2
For ease of reference, all citations to “8 U.S.C. § 1432(a)” or
“§ 1432(a)” refer to this former section.
CHENEAU V. BARR 15
citizen in January 2000 when he applied for adjustment to
lawful permanent resident status.
Clause (5) of § 1432(a) sets forth certain conditions for
children, born outside of the United States of alien parents,
to derive citizenship through the naturalization of a parent
with legal custody:
Such child is residing in the United States
pursuant to a lawful admission for permanent
residence at the time of the naturalization of
the parent [provision one]. . . or thereafter
begins to reside permanently in the United
States while under the age of eighteen years
[provision two].
8 U.S.C. § 1432(a)(5) (emphasis added). The word “or”
indicates that children have two different pathways to
derivative citizenship: (1) by residing in the United States
pursuant to a “lawful admission for permanent residence”
when their parent was naturalized, or (2) by beginning to
“reside permanently” in the United States while under age
eighteen and after their parent’s naturalization.
Cheneau has been residing in the United States since he
lawfully entered at age thirteen. When he was fourteen,
Cheneau’s mother, who had full legal custody of him,
became a naturalized citizen. When he was fifteen, Cheneau
applied for adjustment of status to lawful permanent
resident. But due to a mistake by the Immigration and
Naturalization Service (“INS”), Cheneau did not obtain
lawful permanent resident status until more than three years
later—after he had turned eighteen.
Cheneau does not qualify for derivative citizenship
under the first provision of clause (5): he was not lawfully
16 CHENEAU V. BARR
admitted for permanent residence at the time of his mother’s
naturalization. Cheneau contends that he is a derivative
citizen under the second provision because he began to
“reside permanently” in the United States after his mother’s
naturalization and before he turned eighteen. Cheneau
acknowledges that he did not obtain lawful permanent
resident status until after he turned eighteen, but argues that
the second provision’s “begins to reside permanently” does
not require lawful admission for permanent residence. 3
Rather, it requires only actual residence and an “objective
intent” to reside permanently—which he satisfied in January
2000, at age fifteen, when he applied for adjustment to
lawful permanent resident status while residing in the United
States. 4 As the opinion states, this argument is foreclosed by
Romero-Ruiz.
A circuit split exists on the interpretation of the second
provision’s “or thereafter begins to reside permanently in the
United States.” 8 U.S.C. § 1432(a)(5). Our court interprets
“reside permanently” as identical in meaning to the first
provision’s “residing . . . pursuant to a lawful admission for
permanent residence.” In Romero-Ruiz, we held that “[a]
plain reading of the statute evidences the requirement that
the child be residing pursuant to lawful admission either at
the time of the parent’s naturalization or at some subsequent
time while under the age of 18.” 538 F.3d at 1062. We
explained that the “phrase ‘or thereafter begins to reside
3
Like the government and Cheneau, I use interchangeably the terms
“lawful admission for permanent residence” and obtaining status as a
“lawful permanent resident.”
4
Cheneau’s interpretation would require applying § 1432(a),
because the “critical event” would be his application for adjustment of
status rather than the actual adjustment of his status to lawful permanent
resident.
CHENEAU V. BARR 17
permanently’ alters only the timing of the residence
requirement, not the requirement of legal residence.” Id.
Romero-Ruiz thus adopted the “shorthand interpretation” of
clause (5)—the view that “reside permanently” is a
shorthand reference to “resid[e] . . . pursuant to a lawful
admission for permanent residence.” The Eleventh Circuit
agreed with Romero-Ruiz’s interpretation in United States v.
Forey-Quintero, 626 F.3d 1323, 1324 (11th Cir. 2010),
holding that “the phrase ‘begins to reside permanently in the
United States while under the age of eighteen years’
contained in 8 U.S.C. § 1432(a)(5) requires the status of a
lawful permanent resident.”
The Second Circuit reached the opposite conclusion:
“‘[B]egins to reside permanently’ does not require ‘lawful
permanent resident’ status.” Nwozuzu v. Holder, 726 F.3d
323, 333 (2d Cir. 2013) (alterations in original). Instead,
“begins to reside permanently” requires “some objective
official manifestation of the child’s permanent residence.”
Id. (citation omitted). In the Second Circuit, an “application
of adjustment to lawful permanent resident status . . . is an
objective and official manifestation of [a petitioner’s] intent
to reside permanently in the United States.” 5 Id. at 334.
In my view, we are on the wrong side of the circuit split.
Normal rules of statutory construction counsel that different
terms in the same section mean different things. Both the
statutory text and history of amendments to the statute show
that “residing in the United States pursuant to a lawful
5
The court also explained that the petitioner’s “particular family
circumstances, including the presence and naturalization of [his] parents
and the eventual naturalization of all of his siblings, although not
sufficient on its own to establish an objective manifestation of permanent
residency, further bolster our conclusion.” Nwozuzu, 726 F.3d at 334.
18 CHENEAU V. BARR
admission for permanent residence” and “begins to reside
permanently in the United States” do mean different things,
and were so intended by Congress.
I. The Text
Clause (5)’s two provisions use different language, and
the “usual rule [is] that ‘when the legislature uses certain
language in one part of the statute and different language in
another, the court assumes different meanings were
intended.’” Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9
(2004) (citation omitted). This rule is especially applicable
where, as here, the same Congress chose to use different
language in the same section of the same statute. See
Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067,
2071–72 (2018) (“We usually ‘presume differences in
language . . . convey differences in meaning.’ And that
presumption must bear particular strength when the same
Congress passed both statutes to handle much the same
task.” (citation omitted)); Lopez v. Sessions, 901 F.3d 1071,
1077–78 (9th Cir. 2018). But even beyond application of the
rule, an examination of the statutory text reveals material
distinctions between the differently worded phrases.
In the first provision, “lawful admission for permanent
residence” is a “term of art.” Gooch v. Clark, 433 F.2d 74,
78 (9th Cir. 1970). The INA defines “lawfully admitted for
permanent residence” as “the status of having been lawfully
accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration
laws, such status not having changed.” 8 U.S.C.
§ 1101(a)(20) (emphasis added). The term of art “refers not
to the actuality of one’s residence but to one’s status under
the immigration laws,” as an individual with the privilege of
residing permanently in the United States need not exercise
that privilege at all times. Gooch, 433 F.2d at 79 (emphasis
CHENEAU V. BARR 19
added). The INA’s definition of “lawfully admitted for
permanent residence” includes as a component part the
words “residing permanently”—which is, of course, a
variant of the second provision’s “reside permanently.” See
Thomas v. Lynch, 828 F.3d 11, 15 (1st Cir. 2016).
The INA does not define “reside permanently,” but it
separately defines “residence” and “permanent.” The word
“residence” means “the place of general abode; the place of
general abode of a person means his principal, actual
dwelling place in fact, without regard to intent.” 8 U.S.C.
§ 1101(a)(33) (emphasis added). Unlike the term in the first
provision, “residence” refers to a place and not a status. The
INA defines “permanent” as “a relationship of continuing or
lasting nature, as distinguished from temporary . . . .” Id.
§ 1101(a)(31). But, the INA explains, “a relationship may
be permanent even though it is one that may be dissolved
eventually at the instance either of the United States or of the
individual, in accordance with law.” Id. Using the two
separate definitions as reference, a reasonable definition for
“reside permanently” is “to have as a principal, actual
dwelling place for a continuing or lasting period.” Thomas,
828 F.3d at 15.
The two provisions require different things for derivative
citizenship. The first provision imposes a status requirement
of “lawful admission for permanent residence.” See
8 U.S.C. § 1432(a)(5). The first provision also imposes an
actual residence requirement: the child must be “residing in
the United States” at the time of the parent’s naturalization.
Id. By contrast, the second provision simply says “thereafter
begins to reside permanently in the United States” and has
no status requirement. Id. The second provision includes a
requirement of actual residence that is permanent, as well as
the temporal requirement that the permanent residence
20 CHENEAU V. BARR
began after the parent’s naturalization and while the
petitioner was under age eighteen.
On the face of the statute, only the first provision of
clause (5) contains a status requirement. Romero-Ruiz,
however, imposes the first provision’s status requirement
onto the second provision. The distinction between status
and actual residence is significant. An individual can be
“lawfully admitted for permanent residence” without
actually residing in the United States. Gooch, 433 F.2d at 76
(holding that “green card commuters” can be lawfully
admitted for permanent residence despite physically residing
in Canada or Mexico and crossing the border to work). The
converse is also true: an individual can lawfully and
permanently reside in the United States without having the
status of “lawful permanent resident.” See Nwozuzu, 726
F.3d at 333 (“[T]here are a number of groups that are
permitted to stay in this country permanently without being
lawful permanent residents . . . .”); Elkins v. Moreno,
435 U.S. 647, 666 (1978).
If Romero-Ruiz is correct that “lawful admission for
permanent residence” and “reside permanently” have
identical meanings, then there would be no need for two
provisions and the second provision would be surplusage.
See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a
cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” (internal citations and quotation
marks omitted)). Romero-Ruiz states that “[t]he phrase ‘or
thereafter begins to reside permanently’ alters only the
timing of the residence requirement . . . .” 538 F.3d at 1062.
In other words, the first provision grants the child derivative
citizenship if he was a lawful permanent resident at the time
CHENEAU V. BARR 21
his parent naturalized, while the second provision grants the
child derivative citizenship if he becomes a lawful
permanent resident after his parent’s naturalization. If that
were the case, it is difficult to imagine why Congress would
write two provisions that use different words but mean the
same thing, when it could have written one provision along
the lines of “pursuant to a lawful admission for permanent
residence at the time of naturalization or thereafter.” 6
Romero-Ruiz relies on a different surplusage argument,
explaining that “[t]o interpret the second [provision] as
conferring derivative citizenship on children who otherwise
meet the requirements as long as they are permanently living
in the United States would render the first [provision]—
requiring legal permanent residence—superfluous.”
538 F.3d at 1062. The government advances a similar
argument that if the second provision requires a “lesser form
of residence” and provides an easier pathway to derivative
citizenship, then there would be no need for the first
provision. In my view, Romero-Ruiz and the government
incorrectly read the second provision. The first provision
provides a pathway for children who had already obtained
lawful permanent resident status and who were actually
residing in the United States—this combination being the
“greater” form of residency—to get the benefit of automatic
citizenship as soon as their parent is naturalized. The second
provision provides a pathway for children without lawful
permanent resident status, and who therefore have to
“begin[] to reside permanently in the United States” after
their parent’s naturalization. See Thomas, 828 F.3d at 17
6
This is precisely the language that Congress used in former 8
U.S.C. § 1431(a)(2) (1994) (amended 2000). This adjacent section was
effective at the same time that § 1432(a) was. See Minasyan, 401 F.3d
at 1076 n.11.
22 CHENEAU V. BARR
(noting that the word “begins” requires that the child
“experienced any relevant change in status or took any
relevant action” after his parent’s naturalization). 7 The
second provision, even without a status requirement, does
not necessarily swallow the first. The first provision’s actual
residence requirement is merely “residing” in the United
States at the time of the naturalization. 8 U.S.C.
§ 1432(a)(5) (1994). The second provision imposes the
additional requirements that the actual residence be
permanent, and that the permanent residence began after the
parent’s naturalization.
Other sections of the INA also recognize a distinction
between the two terms, including former 8 U.S.C.
§ 1431(a)(2) (1994), which addressed derivative citizenship
for children born outside the United States of one citizen
parent and one alien parent. That adjacent section provides
that such children may derive citizenship from the alien
parent’s naturalization if they were “residing in the United
States pursuant to a lawful admission for permanent
residence at the time of naturalization or thereafter and
begin[] to reside permanently in the United States while
under the age of eighteen years.” 8 Id. (emphases added).
7
In Thomas, the First Circuit found support for both Cheneau’s and
the government’s reading of § 1432(a)(5). 828 F.3d at 15–17. The court
chose not to decide the question, as it found the Petitioner lost under
either reading. Id. at 17.
8
Other examples abound. See, e.g., 8 U.S.C. § 1433(a)(5)(A)
(1994) (“[T]he child is residing permanently in the United States with
the citizen parent, pursuant to a lawful admission for permanent
residence.” (emphasis added)); id. § 1438(b)(2) (“No person shall be
naturalized . . . unless he has been lawfully admitted to the United States
for permanent residence and intends to reside permanently in the United
States.” (emphasis added)).
CHENEAU V. BARR 23
Importantly, former § 1431(a)(2) uses “and” to link the
terms—in contrast to “or” in § 1432(a)—illustrating two
points. First, the adjacent section’s usage of the conjunctive
“and” all but guarantees that Congress did not intend “reside
permanently” to be shorthand for “resid[e] . . . pursuant to a
lawful admission for permanent residence.” Second, that
Congress chose to use the disjunctive “or” in § 1432(a)
supports that the statute provides two different pathways to
derivative citizenship. 9
9
I address briefly Thomas’s discussion of the additional arguments
in support of the government’s reading. 828 F.3d at 16. First, the First
Circuit pointed out that if “reside permanently” is broader than “lawfully
admitted for permanent residence,” then “the requirements for becoming
a citizen at the time of the relevant naturalization would be stricter than
the requirements for becoming a citizen after that naturalization.” Id. I
do not find this view to be compelling. When evaluating whether a
requirement is easier or harder to satisfy, I think we should view it from
the perspective of the applicant rather than the timing. Under Cheneau’s
interpretation, children who had already obtained “lawful admission for
permanent residence” get the benefit of automatic citizenship as soon as
their parent becomes naturalized. Children without legal permanent
resident status must “begin” to reside permanently in the United States—
such as by experiencing a change in status or taking a “relevant action”—
after their parent’s naturalization. Id. at 17. Second, Thomas points out
that under an adjacent section of the INA, “aliens born abroad to one
alien parent and one citizen parent could not acquire derivative
citizenship without obtaining a lawful admission for permanent
residence.” Id. at 16. It would be an oddity, according to the court, for
Congress to require that children born of one citizen parent acquire
lawful permanent resident status for derivative citizenship, but not
require the same thing of children born of two alien parents. Id. I am
sympathetic to the view that this result seems odd, but note that this is
the same adjacent section, former 8 U.S.C. § 1431(a)(2), discussed
above. The adjacent section clearly requires that the child be “residing
in the United States pursuant to a lawful admission for permanent
residence at the time of naturalization or thereafter and begins to reside
permanently in the United States while under the age of eighteen years.”
24 CHENEAU V. BARR
If Congress intended to limit derivative citizenship to
lawful permanent residents, it could have expressly done so.
It did just that in the current version of the derivative
citizenship statute, which modified § 1432(a)(5) to read:
“The child is residing in the United States in the legal and
physical custody of the citizen parent pursuant to a lawful
admission for permanent residence.” 8 U.S.C. § 1431(a)(3).
The current version deletes “or thereafter begins to reside
permanently”—the second pathway—from § 1432(a)(5),
and makes clear that a child is eligible for derivative
citizenship only if he was lawfully admitted for permanent
residence.
II. The History
The history of amendments to the statutory text, which
Romero-Ruiz does not discuss, also supports interpreting the
two provisions differently. 10 The term “reside permanently”
has been used in the derivative citizenship statute since 1907,
while the term “lawful admission for permanent residence”
is a term of art first introduced and defined in 1952. See
Citizenship Act of 1907, ch. 2534 § 5, 34 Stat. 1228, 1229
(repealed 1940); Nwozuzu, 726 F.3d at 330–31. In 1940,
Congress enacted a predecessor version of § 1432(a),
providing two different pathways to derivative citizenship
8 U.S.C. § 1431(a)(2) (1994) (emphasis added). I think it even odder
that Congress would write a law requiring both “lawful admission for
permanent residence” and “begins to reside permanently” if those terms
mean the same thing, or if Congress intended those terms to be
interchangeable in one section but carry different meanings in an
adjacent section.
10
The Second Circuit in Nwozuzu conducted an extensive analysis
of the history of the derivative citizenship statute, which I will not repeat
in full. See 726 F.3d at 329–32.
CHENEAU V. BARR 25
for a child who was “residing in the United States at the time
of the naturalization of the parent last naturalized . . . or
thereafter begins to reside permanently in the United States
while under the age of eighteen years.” Nwozuzu, 726 F.3d
at 331 (quoting Nationality Act of 1940, ch. 876 § 314, 54
Stat. 1137, 1145–46 (repealed 1952)). The 1940 version’s
second provision is identical to the second provision of
§ 1432(a)(5), the statute at issue here. The two versions of
the first provision differ in that the 1940 version does not
contain a requirement of “lawful admission for permanent
residence.”
The Immigration and Nationality Act of 1952 (the “Act”
or “1952 Act”) defined “lawfully admitted for permanent
residence” as a new term of art. Nwozuzu, 726 F.3d at 331.
The House Report accompanying the 1952 Act explained
that the term, as defined by the Act, carries “especial
significance because of its application to numerous
provisions of the bill.” H.R. Rep. No. 82–1365 (1952). The
1952 Act also modified the derivative citizenship statute by
adding “pursuant to lawful admission for permanent
residence” for the first time. INA § 321(a)(5), ch. 477, 66
Stat. 163, 245 (1952). Notably, Congress preserved the two
pathways and added the new term of art only to the first. Id.
The second provision was left almost unchanged, with the
only material difference between the 1952 version and the
1940 version being the 1952 version’s age change from
under eighteen to under sixteen. 11 Given that Congress
11
Clause (5) of the 1952 version, which is almost identical to
§ 1432(a)(5), provided: “Such child is residing in the United States
pursuant to a lawful admission for permanent residence at the time of the
naturalization of the parent . . . , or thereafter begins to reside
permanently in the United States while under the age of sixteen years.”
INA § 321(a)(5), ch. 477, 66 Stat. 163, 245 (1952).
26 CHENEAU V. BARR
added “lawful admission for permanent residence” for the
first time in 1952, and added it only to the first provision, I
agree with the Second Circuit’s conclusion that Congress did
not intend the phrase “‘reside permanently’—which had
been carried over, unaltered, from previous statutes since
1907—to be shorthand for the new term of art.” Nwozuzu,
726 F.3d at 331. Indeed, I would go further—I think it
almost inconceivable that if Congress intended such a radical
change, it would have done so in such an inscrutable manner.
The government cites a 1950 Senate Report—stating that
“lawful permanent residence has always been a prerequisite
to derivative citizenship”—to rebut the Second Circuit’s
analysis. The government suggests that Nwozuzu ignored
that “lawful admission for permanent residence,” even
though it was first introduced in 1952, has always been a
requirement that was unchanged by the 1952 Act. But the
government quotes the report out of context. The 1950
Senate Report states the following:
Lawful permanent residence has always been
a prerequisite to derivative citizenship. There
must be a bona fide intent to reside
permanently in the United States. Thus, the
child does not derive citizenship if he goes
abroad before the naturalization of his
parents, and intends to abandon and does
abandon his residence in the United States.
However, if there is a fixed intention to
return, it has been held that an absence of as
long as 14 years will not prevent
naturalization shortly after the child’s
departure provided the father’s domicile has
continued.
CHENEAU V. BARR 27
S. Rep. No. 81-1515, at 707 (1950) (emphasis added). The
words “lawful permanent residence” used in the 1950 Senate
Report clearly do not mean the term of art “lawfully admitted
for permanent residence” introduced in the 1952 Act. If
anything, the Senate Report supports Cheneau’s and the
Second Circuit’s view that actual residence in the United
States can qualify a child for derivative citizenship, and
intent is relevant for determining permanent residence.
III. Conclusion
I believe that if Congress intended the two provisions of
§ 1432(a)(5) to mean the same thing, it would have used the
same language or written just one provision. Instead,
Congress chose two different phrases—one that refers to
status while the other refers to actual residence. Those two
terms have been used in other sections of the INA to mean
different things. And the history of the statute further shows
that the two terms have different meanings and serve
different functions. For these reasons, I believe that
Romero-Ruiz was wrongly decided, and that contrary to the
compelled holding in our opinion, Cheneau is a citizen of the
United States and not an alien subject to removal.